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Former legal adversaries join forces against Prop 8

Recent days have seen much activity on the issue of marriage equality.  In New Jersey, proposed legislation to legalize same-sex marriage was defeated in the state Senate last week.  However, while action in the Legislature was defeated, the matter is now headed for court.  As the Philadelphia Inquirier reported, Garden State Equality and the Lambda Legal Defense and Education Fund are taking the State of New Jersey to court.  Their challenge will be based upon a 2006 New Jersey Supreme Court ruling that the state must provide same-sex couples with the same rights and privileges as heterosexual couples.  The Court left it to the Legislature to determine how to do that.  The Legislature did enact a law creating civil unions for same sex couples.  However, the coming court challenge will argue that the civil union law is not sufficient in order to try to require the state to legalize same-sex marriage.

The most high profile case now is the trial underway in the case challenging California's Proposition 8.  Joining forces to represent two same-sex couples challenging Prop 8 are David Boies and Ted Olson, the attorneys who were on opposite sides in the 2000 Bush v. Gore election recount case.  In a Newsweek article written by Olson, he explains why he, as a conservative, supports the right of same-sex couples to marry and counters the major arguments that have been put forward opposing same-sex marriage.  One very salient put Olson makes:  "Marriage requires thinking beyond one's own needs. It transforms two individuals into a union based on shared aspirations, and in doing so establishes a formal investment in the well-being of society. The fact that individuals who happen to be gay want to share in this vital social institution is evidence that conservative ideals enjoy widespread acceptance. Conservatives should celebrate this, rather than lament it."

One argument against same-sex marriage that opponents raise is that it is counter to procreation.  However, as Olson points out,  our society has never made ability to procreate a test of getting married and indeed we allow marriage by the very elderly and inmates serving life prison sentences despite the fact that they will have little or no opportunity to procreate.

Opponents have also raised the idea that allowing same-sex marriage will somehow harm heterosexual marriage yet, as Olson notes, his opponent in the California trial conceded to the judge he could not think of any way in which same-sex marriage is detrimental to heterosexual marriage.

Meanwhile, challenges to the federal Defense of Marriage Act continue to move forward including one brought by Massachusetts Attorney General Martha Coakley (who is running for election to the late Ted Kennedy's Senate seat).  Interestingly, the Obama Administration seems to be trying to have it both ways by defending the DOMA law in court while at the same time saying it wants Congress to repeal the law.

Stay tuned.  More interesting developments will be coming along. 

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